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PETITIONER:
SHANKARSAN DASH
Vs.
RESPONDENT:
UNION OF INDIA
DATE OF JUDGMENT30/04/1991
BENCH:
SHARMA, L.M. (J)
BENCH:
SHARMA, L.M. (J)
RAY, B.C. (J)
SHETTY, K.J. (J)
VENKATACHALLIAH, M.N. (J)
VERMA, JAGDISH SARAN (J)
CITATION:
1991 AIR 1612 1991 SCR (2) 567
1991 SCC (3) 47 JT 1991 (2) 380
1991 SCALE (1)848
ACT:
Civil Services: Recruitment by Competitive Examination-
Candidate included in merit list-Whether acquires an
indefeasible right of appointment-Filling up of vacancies-
Adoption of different policy for general and reserved
categories-Whether arbitrary and discriminatory-Indian
Police Service (Cadre) Rules, 1954: Rule 4: Indian Police
Service (Recruitment) Rules; Rules 3,4,6 and 7; and Indian
Police Service (Appointment by Competitive Examination)
Regulations:Regulations 2(1) (a), 8 and 13-Applicability of.
HEADNOTE:
On the basis of the results of the combined Civil
Services Examination held by the Union Public Service
Commission for appointment to several Services and the
position in the combined merit list for the Indian Police
Service and Police Services, Group `B' the appellant was
appointed to the Delhi Andaman and Nicobar Police
Service,also Known as DANIP. Subsequently when certain
vacancies arose in the Indian Police Service, due to
selected candidates not joining the Service, and only the
reserved category vacancies were filled up by the
candidates, who had been earlier appointed in DANIP Service,
the appellant who came to occupy top position, represented
to the authorities for filling the general vacancies also,
but his request was turned down .Hence the appellant filed
writ application before the High Court, which was dismissed
in limine .
In the appeal before this Court, on behalf of the
appellant it was contended that since ultimately several
vacancies in the general category of the IPS remained
unfilled, he was entitled to be appointed in one of them,
that since 54 vacancies were notified for general category
and he was found qualified for the appointment, the
respondent could not refuse to fill up the vacancies, and
there was no justification to refuse to follow the
procedure adopted in similar situation with respect to the
reserved category, in regard to the general category
vacancies also and that in view of the relevant statutory
rules, the authorities were under a duty to continue with
the process of filling up the vacancies until nonremained
vacant, and by keeping the posts unfilled, they had acted
arbitrarily.
568
On behalf of the respondent-Union of India it was
contended that the tentative service allocation for IPS was
completed before the commencement of the foundational course
for the IPS, and the process of final service allocation was
closed after filling up certain vacancies, which had
arisen, since the process for recruitment for the next year
had already started, and hence the additional vacancies
arising later remained unfilled, that the process followed
in connection with the reserved category, was not followed
in regard to the general category vacancies on account of
vital differences obtaining in the relevant conditions in
the two categories, and hence there was no discrimination or
arbitrariness, in keeping the general category vacancies
unfilled.
Dismissing the appeal, this Court
HELD: 1.1 Even if vacancies are notified for
appointment and adequate number of candidates are found fit,
the successful candidates do not acquire an indefeasible
right to be appointed. Ordinarily, the notification merely
amounts to an invitation to qualified candidates to apply
for recruitment and on their selection they do not acquire
any right to the post. Unless the relevant recruitment rules
so indicate, the State is under no legal duty to fill up all
or any of the vacancies. However, it does not mean that the
State has the licence of acting in an arbitrary manner. The
decision not to fill up the vacancies has to be taken bona
fide for appropriate reasons. And if the vacancies or any of
them are filled up, the State is bound to respect the
comparative merit of the candidates, as reflected at the
recruitment test, and no discrimination can be permitted.
[572A-C]
State of Haryana v. Subhash Chander Marwaha and
Others,[1974] 1 SCR 165; Miss Neelima Shangla v. State of
Haryana and Others, [1986] 4 SCC 268 and Jitendra Kumar and
Others v. State of Punjab and others, [1985] 1 SCR 899,
referred to.
1.2 The appellant had not acquired a right to be
appointed against the vacancy arising later on the basis of
any of the rules, namely, Rule 4 of the Indian Police
Service (Cadre) Rules, 1954, Rules 3,4,6 and 7 of the Indian
Police Service (Recruitment) Rules, 1954 and Regulations
2(1)(a) and (c), 8 and 13 of the Indian Police Service
(Appointment by Competitive Examination) Regulations,
1955.These Provisions do not indicate that all the notified
vacancies are to be filled up.[573G,574B]
1.3 From the materials placed before the Court it is
fully estab-
569
lished that there has not been any arbitrariness whatsoever
on the part of the respondent in filling up the vacancies in
question or other vacancies. The process of final selection
had to be closed at some stage as was actually done. A
decision in this regard was accordingly taken and the
process for further allotment to any vacancy arising later
was closed. It is not material if in pursuance of a decision
already taken before closing the process of final selection,
the formal appointments were concluded later. What is
relevant is to see as to when the process of final selection
was closed. Mere completing the formalities dose not give
any right to appointment. [574E-G]
1.4 The decision to adopt a different policy with
respect to filling up of the reserved vacancies is justified
on account of the special circumstances. The decision to
depart from the confirmed policy was taken after
consideration by the authorities of the position in regard
to unavailability of qualified candidates from year to year
adversely affecting the desired strength of the reserved
candidates in the services and cannot be condemned on the
grounds of arbitrariness and illegal discrimination. [575B]
JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No.
8613 of 1983.

From the Judgment and Order dated 21.1.1981 of the
Delhi High Court in Civil Writ No. 41 of 1981.

P.K.Goswamy and Kailash Vasudev for the Appellant.
V.C. Mahajan, Ashok Bhan and C.V. Subba Rao for the
Respondent.

The Judgment of the Court was delivered by
Sharma, j. This appeal was earlier heared by a Division
Bench and was referred to a Constitution Bench for examining
the question whether a candidate whose name appears in the
merit list on the basis of a competitive examination,
acquires indefeasible right of appointment as a Government
servant if a vacancy exists. Reference was made to the
decision in State of Haryana v. Subhash Chander Marwaha and
Others, [1974] 1 SCR 165; Miss Neelima Shangla, Ph.D.v.
State of Haryana and Others, [1986] 4 SCC 268 and Jitendra
Kumar and Others v. State of Punjab and Others. [1985] 1SCR

899.
570

2. The appellant was selected in the combined Civil
Services Examination held by the Union Public Service
Commission for appointment to several services including the
Indian Police Service (in short `the IPS') and the Police
Services Group `B'. The examination had been held in
October, 1977 and the result was announced in May 1978. A
combined merit list for the IPS and the Police Services
Group `B' was announced which included the name of the
appellant. Out of the total number of 70 vacancies in the
IPS announced to be filled up, 54 were of general category
and the remaining 16 reserved for Scheduled Castes/Scheduled
Tribes candidates. The position of the appellant in the
merit list was not high enough to be included in the IPS and
he was offered appointment to the Delhi Andaman and Nicobar
police Service (hereinafter referred to as the `DANIP')in
Police Service Group `B' which he accepted. On account of
several candidates, allotted to Police Services Group `B'not
Joining, the position of the appellant improved and
ultimately he was on the top of the list.

3. In June, 1979, 14 Vacancies arose in the IPS due to
selected candidates not joining the service. Out of the
same, 11 were in the general category and 3 in the reserved
category. Three vacancies in the reserved category were
filled up by the candidates who had been earlier appointed
in DANIP Service, but no appointments were made to general
category vacancies. The appellant, by a representation,
prayed that these vacancies also should be filled up. The
request was turned down, and the appellant moved the Delhi
High Court by a writ application under Article 226 of the
Constitution, which was dismissed in limine by the impugned
order.

4. The case of the appellant is that since ultimately
several vacancies in the general category of the IPS
remained unfilled, he was entitled to be appointed in one of
them, and the authorities were not right in rejecting his
representation. It has been contended that after calculating
the number of vacancies in the IPS, it was announced that
appointments would be made in 54 vacancies of general
category, and steps for recruitment were accordingly taken.
The appellant along with others appeared at the elaborate
test held for the purpose and he was found qualified for the
appointment .In that situation the respondent could not
refuse to fill up the vacancies and proceed to appoint the
appellant in the Police Services Group `B'. It has been
argued that the correct procedure in similar situation was
followed with respect to the reserved category and the three
vacancies arising in identical situation were filled up from
the candidates selected for DANIP Service, and
571
there was no justification to refuse similar benefit to the
appellant in the general category.

5. According to the case of the Union of India, the
process for the recruitment in question started in 1977, and
the tentative service allocation for IPS was completed
before the commencement of the foundational course in July,
1978. All the candidates selected for IPS, excepting those
who were eligible to appear at the examination for the
Indian Administrative Service scheduled to be held in
October -November, 1978, and such other candidates who had
not been finally cleared on account of pending medical
examination or character verification had to attend the
foundational course. Candidates allocated to Police Services
Group `B' were not required to undergo this course. By June,
1978, 7 more vacancies arose on account of candidates not
joining IPS due to various reasons, and 7 persons in order
of merit from the joint list of the IPS and the Police
Services Group `B' were allowed to fill up these
vacancies. The last one in this list of 7 candidates was
Shekhar Singh at serial No. 94. The appellant could not get
a chance as his position was 100th. This process of final
service allocation was closed on 24.10.1978 or at the latest
by 4.11.1978, in view of the process for recruitment for the
year 1978, which had already started. The additional
vacancies arising later,therefore, remained unfilled.The
entire procedure which is followed for recruitment to the
Services has been given in several affidavits of the
respondent, and detailed information in this regard was
supplemented by a further affidavit during the hearing of
the hearing of the appeal filed in the light of observations
of the Bench.

6.Dealing with the appointments to reserved category,it
has been stated in the counter affidavit that the process
which was followed in connection with the general category
and which was being earlier followed for the reserved
category also, was relaxed in pursuance of a policy decision
taken after examining all relevant circumstances and
materials in regard to this category including the
strength of the reserve category in the IPS, the result of
the examinations for the year 1975,1976 and 1977. The
procedure which was being followed in the past was not
relaxed in regard to the general category on account of
vital differences obtaining in the relevant conditions in
the two categories and the appellant's plea of alleged
discrimination does not have any merit. Similarly the case
of one Km. Vandana Srivastava cited by the appellant has
also been distinguished and Mr. Goswami, therefore , did not
pursue this plea any further in his final reply.

572

7. It is not correct to say that if a number of
vacancies are notified for appointment and adequate number
of candidates are found fit, the successful candidates
acquire an indefeasible right to be appointed which cannot
be legitimately denied. Ordinarily the notification merely
amounts to an invitation to qualified candidates to apply
for recruitment and on their selection they do not acquire
any right to the post. Unless the relevant recruitment
rules so indicate, the State is under no legal duty to fill
up all or any of the vacancies. However, it does not mean
that the State has the licence of acting in an arbitrary
manner. The decision not to fill up the vacancies has to be
taken bona fide for appropriate reasons. And if the
vacancies or any of them are filled up, the State is bound
to respect the comparative merit of the candidates, as
reflected at the recruitment test, and no discrimination can
be permitted. This correct position has been consistently
followed by this Court, and we do not find any discordant
note in the decisions in State of Haryana v. Subhash Chander
Marwaha and Others, [1974] 1 SCR 165; Miss Neelima Shangla
v. State of Haryana and Others, [1986] 4 SCC 268 and
Jitendra Kumar and Others v. State of Punjab and Others,
[1985] 1 SCR 899.

8. In State of Haryana v. Subhash Chander Marwaha and
Others, (supra) 15 vacancies of Subordinate Judges were
advertised, and out of the selection list only 7, who had
secured more than 55% marks, were appointed, although under
the relevant rules the eligibility condition required only
45% marks. Since the High Court had recommended earlier, to
the Punjab Government that only the candidates securing 55%
marks or more should be appointed as Subordinate Judges, the
other candidates included in the select list were not
appointed. They filed a writ petition before the High Court
claiming a right of being appointed on the ground that
vacancies existed and they were qualified and were found
suitable. The writ application was allowed. While reversing
the decision of the High Court, it was observed by this
Court that it was open to the Government to decide how MANY
appointments should be made and although the High Court had
appreciated the position correctly, it had ``somehow
persuaded itself to spell out a right in the candidates
because in fact there were 15 vacancies''. It was expressly
ruled that the existence of vacancies does not give a legal
right to a selected candidate. Similarly, the claim of some
of the candidates selected for appointment, who were
petitioners in Jitendra Kumar and Others v. State of Punjab
and Others, was turned down holding that it was open to the
Government to decide how many appointments would be made.
The plea of arbitrariness was rejected in view of the facts
of the case and it was had that the candi-

573

dates did not acquire any right merely by applying for
selection or even after selection. It is true that the claim
of the petitioner in the case of Miss Neelima Shangla v.
State of Haryana was allowed by this Court but, not on the
ground that she had acquired any right by her selection and
existence of vacancies. The fact was that the matter had
been referred to the Public Service Commission which sent to
the Government only the names of 17 candidates belonging to
the general category on the assumption that only 17 posts
were to be filled up. The Government accordingly made only
17 appointments and stated before the Court that they were
unable to select and appoint more candidates as the
Commission had not recommended any other candidate. In this
background it was observed that it is, of course, open to
the Government not to fill up all the vacancies for a valid
reason, but the selection cannot be arbitrarily restricted
to a few candidates notwithstanding the number of vacancies
and the availability of qualified candidates; and there must
be a conscious application of mind by the Government and the
High Court before the number of persons selected for
appointment is restricted. The fact that it was not for the
Public Service Commission to take a decision in this regard
was emphasised in this judgment. None of these decisions,
therefore, supports the appellant.

9. Mr. Goswami appearing in support of the appeal has
contended that in view of the relevant statutory rules, the
authorities were under a duty to continue with the process
of filling up all the vacancies until none remained vacant.
Reference was made to r. 4 of the Indian Police Service
(Cadre) Rules, 1954, rr. 3,4,6 and 7 of the Indian Police
Service (Recruitment) Rules, 1954 and rr., 2(1)(a), 2(1)(c),
8 and 13 of the Indian Police Service (Appointment by
competitive Examination) Regulations, 1965. We do not think
any of these rules comes to the aid of the appellant. Rule 3
of the Cadre Rules directs constitution of separate cadres
for States or group of States, and r. 4 empowers the Central
Government to determine the strength in consultation with
the State Governments. The strength has to be re-examined at
intervals of 3 years. Rule 3 of Recruitment Rules deals with
the constitution of the Service, and r. 4 the method of
recruitment. Rules 6 and 7 give further details in this
regard. The learned counsel could not point out any
provision indicating that all the notified vacancies have to
be filled up. Similar is the position with respect to the
Competitive Examination Regulations. Regulation 2(1)(a)
defines available vacancies as vacancies determined by the
Central Government to be filled on the results of the
examination, described in Regulation 2(1)(a). Regulation 8
prescribes that the candidates would be considered for
appointment to the available
574
vacancies subject to provisions 9 to 12 and Regulation 13
clarifies the position that a candidate does not get any
right to appointment by mere inclusion of his name in the
list. The final selection is subject to satisfactory report
on the character, antecedent and suitability of the
candidates. We, therefore, reject that the claim that the
appellant had acquired a right to be appointed against the
vacancy arising later on the basis of any of the rules.

10. The main contention on behalf of the appellant has
been, however, that the authorities in keeping the vacancies
arising later unfilled, acted arbitrarily. Mr. Goswami
referred to several documents annexed to the special leave
petition and affidavits filed on behalf of the parties
and contended that although appointments of many candidates
in the other services were made in the later vacancies, the
vacancy in the Indian Police Service which subsequently
became available to the appellant was refused without any
just cause, resulting in illegal discrimination. This was
emphatically denied on behalf of the respondent. Since the
matter did not appear to be free from ambiguity on the
basis of the affidavits before us, we decided to examine the
factual aspects more thoroughly by examining the other
available materials on the records of the Union of India,
and accordingly the learned counsel for the respondent got
the relevant departmental files called. Two further
affidavits were also filed along with photostat copies of a
large number of documents, which we examined at some length
with the aid of the learned advocates for both sides. From
the materials produced before us it is fully established
that there has not been any arbitrariness whatsover on the
part of the respondent in filling up the vacancies in
question or the other vacancies referred to by the learned
counsel for the appellant. The process of final selection
had to be closed at some stage as was actually done. A
decision in this regard was accordingly taken and the
process for further allotment to any vacancy arising later
was closed. Mr. Goswami relied upon certain appointments
actually made subsequent to this stage and urged that by
those dates the further vacancies in the Indian Police
Service had arisen to which the appellant and the other
successful candidates should have been adjusted. We do not
find any merit in this contention. It is not material if in
pursuance of a decision already taken before closing the
process of final selection, the formal appointments were
concluded later. What is relevant is to see as to when the
process of final selection was closed. Mere completing the
formalities cannot be of any help to the appellant. We do
not consider it necessary to mention all the details in this
connection available from the large number of documents
which we closely examined during the hearing at considerable
length and do not
575
have any hesitation in rejecting the argument of the learned
counsel in this regard based on the factual aspect.

11. So far the decision to adopt a different policy
with respect to filling up of the reserved vacancies is
concerned the same is justified on account of the special
circumstances mentioned in the respondent's affidavits. The
decision to depart from the confirmed policy was taken after
a consideration by the authorities of the position in regard
to unavailability of qualified candidates from year to year
adversely affecting the desired strength of the reserved
candidates in the services and cannot be condemned on the
grounds of arbitrariness and illegal discrimination.

12. In the result, we do not find any merit in the
appeal which is accordingly dismissed, but, in the
circumstances, without costs.